When I was an articling student, my principal Jack Pinkofsky used to always say: “Footprints in. Footprints out.”

Jack would use this analogy to describe how everything within criminal cases leaves a trace. Evidence is merely a product of direct or circumstantial connections, or, “footprints’. Tracking those footprints was the hard part. In 2017, those footprints have become far more ubiquitous, but also more elusive unless you know where to search. For those that do, the tracking is now digital, not terrestrial.

Everywhere we go, we leave digital impressions. Our phones transmit data and information that is astounding, and overwhelmingly unknown by their users. Facebook updates, Instagram posts, tweets, chats, and stories. We are almost always transmitting data of some sort. And even when we are not transmitting data, the absence of footprints also speaks volumes. Digital silence may lead to strong inferences of when we were travelling, when we were sleeping, and when we may have turned our phone off (perhaps for the very reasons the prosecution is alleging).

As lawyers, it’s important to be able to guide our clients through this terrain. To advise them not only on the footprints they leave, but also how to find those prints should they prove useful. Similarly, we must be cautious that we do not create our own footprints that may serve to their detriment.

This article sets out to provide 7 simple and practical tips as we track, advise, and defend.

Advise your existing clients, and anyone you know, to lock their phones.

Considering the extensive sensitive data that is preserved on a phone (even after deletion) is good practice for everyone to password lock their phones.

In addition to these obvious reasons, there are also specific legal reasons that make one vulnerable to police searches if ever arrested for an offence. As we indicated in a previous article, the Supreme Court of Canada held in R. v. Fearon that is fair game for police to do a cursory search of the data contents of a phone provided that: 1) the arrest is lawful, 2) the search’s is done promptly and with a purpose that is incidental to offence(s) the suspect is arrested for, 3) the search is tailored towards this purpose, and, 4) detailed notes are kept on what was done.

However, this incidental power of arrest does not permit the police (at least at the present time) to compel individuals to provide passwords to unlock those contents. In those instances, judicial authorization (i.e. a warrant or production order) would be required.

As such, the practical effect to the present law on searches of smart phones is that privacy from state intrusion can only be meaningfully secured by the active means of setting a passcode. Anything short of that runs the risks of clients’ phones being subject to warrantless searches upon arrest. The broad permissions set out in Fearon leave very little room for sensitive information to hide.

Advise your client to lock their phones after speaking to you in police presence.

With one phone call, a locked phone’s status quickly changes to unlocked.

In some instances, that phone call may be to counsel. A point of caution to clients who have been afforded to speak to a lawyer on their cell phone is that once the call is over, police may seek to take the phone from their hands now that it is unlocked – thus circumnavigating the legal protection of locked phones set out above.

Therefore, when speaking to a client, it is prudent to advise them to lock their phone as soon as they hang up so as to prevent a quick Fearon-style search and seizure immediately after their call to counsel. While this conduct may be challenged after the fact, it is much better if it’s unnecessary.

An important reminder: data still transmits after arrest.

Something easily forgotten, by clients and counsel, is that data can continue to transmit after arrest.

What this means, in effect, is that emails, texts, and call history that clients are receiving may continue to download on to their smart phones (or computers). This may seem obvious or innocuous at first, but there are many reasons why this is important, particularly for counsel:

Emails, texts, and their contents sent by their lawyers to their clients may now be in police possession. As noted, data continues to transmit. Therefore, lawyer communications sent even months after an arrest, may still be downloaded to a phone with those accounts set up on them. Even if the phone is powered down, once charged and reconnects to the network, all that data (many months worth perhaps) will now sync with whatever email accounts, texts, or other apps that may have sensitive and/or privileged information contained within them.

Although lawyer communications form solicitor-client privilege, this does not prevent the police from inadvertently stumbling upon, and reading, such communications. Lawyers failing to recognize and flag the issue of possible privilege to the prosecution or police run this risk to a higher degree.

Even if a phone (or computer) is protected, if a production order or warrant is granted, all these pending transmission issues remain once the device is connected via cellular data, WiFi, or hardwired internet connection (if the police felt so inclined to engage the latter two).

One way to avoid this issue (to a certain degree) is to ensure you client’s cancel the cellular data plan on their seized phones as soon as possible so as to avoid unintended data transfer.

The preservation of social media evidence

Social media can prove invaluable to a case. However, it is also the kind of evidence that is easily susceptible to deletions or restrictions.

Therefore, one of the first questions asked of clients ought to be whether there is any potential for social media evidence assisting with the case. If so, this evidence must be preserved immediately by downloading, printing, and/or screen capturing it. This includes, but it not limited to: Twitter, Facebook, Instagram, Snapchat, etc. It may include content, photos, geocaching, or even mere transmission of data itself.

Above all, be sensitive to social media’s worth and its transience through deletion or restricted access at a later date.

Data doesn't go away easily.

The deletion of data is merely marking certain storage clusters available for reuse.

What this means is that simply deleting information does not delete it. Data is only “deleted” when it is overwritten by other data and is therefore no longer accessible and/or recoverable.

Knowing this fact about data is both a shield and sword depending on the advice you may provide in different contexts (i.e., whether to consent to a phone search, whether to retain s data recovery specialist, etc.)

Ensure lines of communication to clients are secure

Knowing that data may be intercepted or downloaded on a seized device is essential to ensuring the communications between counsel and client are secure.

When interviewing clients who have had phones or computers seized, ask them what accounts (email, text, phone, apps, etc.) were they using on the seized devices. From there, out of an abundance of caution, you may wish to advise the client to set up new email accounts and/or texting means that are not accessible by what is in police possession.

Taking this one step further, as our firm employs, never discuss sensitive legal matters over the telephone, email, or text. However, it never hurts to take precautions like this, even if only to ensure the client does not inadvertently discuss something you would have preferred to discuss in person at your office.

GPS and cellular tracking: a sword and shield.

GPS and location based data is everywhere. GPS data is preserved on phones, social media apps, computers, smart devices, and myriad other sources. Add to that cell phone triangulation, and smart devices that track activity at residences or business. In short, it is hard to move in this day in age without leaving a digital footprint everywhere you go.

If the location of your client is an important aspect of the case (particularly in the case of alibi defences), do your diligence to obtain, preserve, and investigate the data of significance.

As a point of practice, clients may mislead you or have a greater sense of confidence than they should on location information. Be sure to avoid disclosing location data that may actually be harmful to the case. This is of particular concern in cases of alibi where false alibi’s may be used as evidence of after the fact consciousness of guilt. Know it exists, but be sure there are no snakes before you go searching under rocks.

The area of digital evidence is vast and could easily take up entire text books to properly understand its risks and utility. However, the 7 simple points above provide a basic starting point for counsel seeking to protect their clients, privileged communications, and have a small sense of what is required to ensure responsible preservation of evidence in 2017.